Some guidelines to consider in determining the records to be delivered, in whole or in part, in responding to a Freedom of Information Law request

Some guidelines to consider in determining the records to be delivered, in whole or in part, in responding to a Freedom of Information Law request

Livson v Town of Greenburgh, 2016 NY Slip Op 05570, Appellate Division, Second Department

In deciding this appeal the Appellate Division set out a number  of  guidelines of value to both custodians of public records that are being sought pursuant to a Freedom of Information Law [FOIL] request and those seeking the disclosure of public documents.  

The genesis of this case was Dorrine Livson’s submission of a FOIL request to the Town of Greenburgh [Town] in her capacity as a representative of a Civic Association seeking the list of the names and email addresses of all persons who “signed-up” to receive updates concerning items posted on the Town's website by email. Referred to as the "gblist," and maintained by a private vendor, Cit-e-Net, gblist subscribers could also elect to discontinue receiving “gblist updates.

The Town denied Livson’s FOIL request, advising her that "[t]here is neither a print or extract function on the software that can reasonably create a list of email addresses." 

Subsequently Livson learned that Cit-e-Net could provide the Town with a digital copy of the gblist upon receiving such a request from the Town. She then filed an administrative appeal challenging  the denial of her FOIL request by the Town. The Town's Board of Supervisors denied Livson’s appeal and she commenced a CPLR Article 78 proceeding against the Town, the Town Clerk, and the Town Board challenging the Town’s denial of her administrative appeal.

The Supreme Court granted Livson’s petition and directed the Town "to disclose, in electronic form, the names and email addresses of subscribers of the gblist." The court, however, said the gblist could not be reproduced, redistributed or circulated nor could the information of the gblist be used for solicitation, fund-raising or any commercial purpose." The Town appealed Supreme Court’s ruling.

Addressing the Town’s appeal, the Appellate Division noted that:

1. The Freedom of Information Law was enacted "to promote open government and public accountability," and "imposes a broad duty on government to make its records available to the public."

2. The statutorily stated policy or philosophy underlying FOIL is to promote “[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations."

3. Records held by third parties on behalf of a government agency are "records" which are presumptively subject to disclosure pursuant to a FOIL request and a government agency's not having physical possession of such records is immaterial with respect to honoring such a request.*

4. The agency denying access to the target[s] of a FOIL request has the burden of demonstrating that an exemption, in whole or in part, applies to the information sought by FOIL request.

5. The statutory exemptions from disclosure are to be "narrowly construed" so as to ensure maximum public access to the government documents requested and the agency must demonstrate that the requested material "fall[s] squarely within a FOIL exemption."

In the words of the Appellate Division, "[T]he agency does not have carte blanche to withhold any information it pleases," and it must "articulate particularized and specific justification" for the nondisclosure at issue. "Conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed."

In addition, the court pointed out that an agency "may deny access to records" where disclosure "would constitute an unwarranted invasion of personal privacy under the provisions of Public Officers Law §89(2)(b)] [and] [W]here none of the [enumerated exemptions under Public Officers Law §89(2)(b) are] applicable, a court must decide whether any invasion of privacy . . . is ‘unwarranted’ by balancing the privacy interests at stake against the public interest in disclosure of the information."

In denying the Town’s appeal, the Appellate Division said that it had not articulated the applicability of any enumerated exemptions under Public Officers Law § 89(2)(b), nor did the Town show that the privacy interests at stake outweigh the public interest in disclosure of the information.

In addition, said the court, Livson sought "to further the public discourse on matters of public importance and concern in the Town" by obtaining the names and email addresses of those persons who subscribe to the gblist. Such persons have willingly divulged that information to the Town so that they may receive news and information, in electronic form, on matters of public concern in the Town and are free to delete their name and email address from the gblist.

As to the privacy issue, the Appellate Division pointed out that the Town did not articulate any privacy interest that would be at stake in the disclosure of the gblist and its contention that disclosure of would make gblist subscribers more susceptible to phishing, spamming, and other email scams was speculative. The Appellate Division also pointed out that disclosure of the information on the gblist would not make the gblist subscribers more susceptible to such acts than they ordinarily would be.

As NYPPL has noted in a footnote in a number of earlier summaries of FOIL decisions by the courts, “The release of some public records is limited by statute. i.e., Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality. Otherwise, submitting a formal FOIL request is not a condition precedent to obtaining public records where access is not barred by statute.

Submitting a formal FOIL request becomes necessary only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record[s] requested. In such cases the individual or organization must file a formal FOIL request in order to seek to obtain the information.

Also note that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the statutory exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, applicable to the information or records demanded.” As the Court of Appeals opined in Capital Newspapers v Burns, 67 N.Y.2d 562, “while an agency is permitted to restrict access to those records falling within the statutory exemptions, the language of the exemption provision contains permissive rather than mandatory language, and it is within the agency's discretion to disclose such records, with or without identifying details, if it so chooses.” 

* Public Officers Law §87.5(b), addressing access to agency records, provides: 5(b) No agency shall enter into or renew a contract for the creation or maintenance of records if such contract impairs the right of the public to inspect or copy the agency's records. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05570.htm

A fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

A fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

City of Lackawanna v Nitido, 2016 NY Slip Op 05220, Appellate Division, Third Department

The City of Lackawanna filed an accidental disability retirement application* on behalf of Kenneth A. Drozdowski, a firefighter employed by the City, after deciding that Drozdowski was permanently disabled as a result of a number of injuries sustained in various incidents during the course of his duties as a firefighter.

The New York State Policemen's and Firemen's Retirement System denied Lackawanna’s application and the City appealed. An administrative hearing officer concluded that the incidents giving rise to the City’s application did not constitute accidents within the meaning of the Retirement and Social Security Law [RSSL] and denied its application. The Hearing Officer's, which determination was sustained by the Deputy Comptroller. Lackawanna next filed a CPLR Article 78 petition challenging the Deputy Comptroller’s decision.

Citing Matter of Kenny v DiNapoli, 11 NY3d 873, the Appellate Division confirm the Deputy Comptroller’s ruling, explaining that “[i]n order for an incident to constitute an accident for purposes of the Retirement and Social Security Law, it must be "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact; and citing Matter of Schultz v DiNapoli, 137 AD3d 1454, the Appellate Division observed that “[t]he injury must not result from an activity undertaken in the performance of ordinary employment duties and must not be an inherent risk of such job duties.”

With respect to the first event submitted by Lackawanna in support of its application, at the hearing Drozdowski had testified that he had responded to a structure fire where an obese individual was trapped on the second floor. Given the urgent situation and in order to evacuate the individual, Drozdowski, with the assistance of other firefighters, strapped the individual to a spine board and, because the individual was too large to fit through the doorway horizontally, attempted to maneuver the individual through the doorway in a vertical position and down the stairs.

When the other firefighters lost their grip on the board, Drozdowski was left alone holding the board and was injured when he slid down the stairs while trying to control the momentum of the individual's weight and prevent the individual from sustaining further injury.

The Appellate Division ruled that the record established that “evacuating occupants of all sizes” is an ordinary part of Drozdowski's duties as a firefighter and thus substantial evidence supports the Deputy Comptroller's conclusion that this incident was not an accident.”

Regarding a second incident described in support of the City’s application, Drozdowski had testified that he had tripped on a three-inch concrete step in the fire station and hit his head on a desk, resulting in an injury to his neck. Although Drozdowski noted that the floor had just been mopped and that he had walked through some puddles on the floor just before falling, the Appellate Division said that “[n]o defective condition in the step was alleged, and Drozdowski acknowledged that he was aware of the step and had, in fact, tripped on it before.”

Under these circumstances, said the court, substantial evidence supports the Deputy Comptroller's conclusion that the injuries sustained in this incident resulted from Drozdowski's own misstep or inattention, which did not constitute an accident for purposes of the Retirement and Social Security Law.”

Considering a third incident the City advanced in support of the application it had filed on behalf of Drozdowski -- an injury sustained by Drozdowski in the course of his responding to an emergency medical service call involving an “obese, intoxicated and combative” individual -- the Appellate Division concluded that the record established that Drozdowski was performing his normal his duties when he sustained those injuries, which arose when in while providing emergency medical service to an individual and that he was aware of the combative nature of the individual. Thus, said the court, substantial evidence supported the Deputy Comptroller's conclusion that the incident did not constitute an accident within the meaning of the RSSL.

The Appellate Division decided that the City “did not sustain its burden of demonstrating that the events producing the injuries resulted from accidents” and sustained the Deputy Comptroller's determination.**

* Subdivision 2 of §207-a of the General Municipal Law provides, provides that in the event a firefighter receiving §207-a.1 benefits does not file an application for accidental disability retirement or line of duty disability retirement benefits, the fire district or municipal corporation employing the firefighter may file such an application of behalf of the firefighter. If such an application is denied, the fire district or municipal corporation employing the firefighter may appeal that determination. A similar provision with respect a police officer as defined in Subdivision 1 of General Municipal Law §207-c is set out in Subdivision 2 of §207-c of the Retirement and Social Security Law.

** The decision is silent as to whether Drozdowski was found eligible for line of duty disability retirement.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05220.htm

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The Disability Benefits E-book – 2016 Edition: This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Selected reports issued by the Office of the State Comptroller during the week ending July 23, 2016

Selected reports issued by the Office of the State Comptroller during the week ending July 23, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

Tax Cap Remains Below One Percent for 2017
Property tax levy growth for local governments will be capped at 0.68 percent for 2017, decreasing slightly from 2016, when it was 0.73 percent, according to State Comptroller Thomas P. DiNapoli. The latest inflation figure affects the tax cap calculations for local governments that operate on a calendar-based fiscal year (Jan 1. – Dec. 31) – which includes all counties, towns, fire districts, 44 cities and 10 villages.

Mid-Hudson Region Shows Economic Strength Following Recession

New York State Comptroller DiNapoli released an economic profileof the Mid-Hudson region. The region’s proximity to New York City and quality transportation systems continue to drive economic activity, but the high costs of housing and doing business could impede future growth.

State Faces Potential Budget Gaps

New York state faces potential budget gaps in future years, according to an analysisof the state’s Financial Plan released by State Comptroller Thomas P. DiNapoli. The budget gaps result from spending increases and tax reductions enacted this year, and the use of temporary resources to pay for recurring costs.

State Tax Collections Dip

Tax collections totaling $19.8 billion fell short of projections for New York state in the first quarter of the state’s fiscal year, a decline of $797.6 million, or 3.9 percent, from the same period last year and $454.1 million below projections, according to the June state cash report issued by State Comptroller Thomas P. DiNapoli.

New I-9 Forms for 2016 still unavailable

New I-9 Forms for 2016 still unavailable

The current version of Form I-9 expired on March 31, 2016, but United States Citizenship and Immigration Services (USCIS) has instructed employers to continue using it until a new revision is approved. USCIS has also proposed changes to the I-9 procedures intended to streamline processing I-9 Forms and reduce errors. 

From the LawBlogs – Week ending July 16, 2016

From the LawBlogs – Week ending July 16, 2016

[Internet links highlighted in color]

Posted by Justia

Administrative appeal vacated because the administrative agencies failed to recognized that the employee’s personnel record considered was internally contradictory

Grover v. Office of Pers. Mgmt., U.S. Court of Appeals for the Federal Circuit Docket: 15-3160

Grover worked for many years for the Customs and Border Protection service and participated in the Civil Service Retirement System, 5 U.S.C. 8331–8351. He retired in 2008 and applied for a retirement annuity. By statute, the annuity must reflect the highest average annual pay based on three consecutive years of specified service, and for a customs officer like Grover in the years in question, the calculation must include overtime pay up to $17,500. The Office of Personnel Management (OPM), in calculating Grover’s pay, did not include anything close to $17,500 in overtime pay, although Grover asserted that he received more than $17,500 in overtime pay in those years. The Merit Systems Protection Board upheld OPM’s calculation, which relied on a particular official record. The Federal Circuit vacated. Neither OPM nor the Board recognized that the record is internally contradictory about what overtime pay Grover received, so neither sought further information, such as pay stubs, that might definitively resolve the uncertainty. The regulation does not permit the Board to affirm OPM’s calculation without resolving the amount-of-overtime-pay factual issue.

Application for disability retirement based on alleged depression, anxiety, and panic attacks rejected

Rossignol v. Maine Pub. Employees Ret. Sys., Court: Maine Supreme Judicial Court Citation: 2016 ME 115

After Robert Rossignol was notified that his teaching contract would not be renewed, Rossignol applied to the Maine Public Employees Retirement System (MPERS) for disability retirement benefits. Rossignol alleged that he suffered from depression, anxiety, and panic attacks, which made it impossible for him to perform the duties of his position. The Executive Director’s designee denied Rossignol’s application. The MPERS Board of Trustees affirmed the denial of disability retirement benefits. The Supreme Court affirmed, holding that Rossignol failed to demonstrate that, under the governing statutory standard, he was entitled to disability retirement benefits.

Group prayer while on duty

Marrero-Mendez v. Calixto-Rodriguez, U.S. Court of Appeals for the First Circuit , Docket: 14-2030

Plaintiff, a Puerto Rico Police Department law enforcement officer, filed a complaint alleging that Defendants, his superior officers, violated the Establishment Clause by holding a group prayer while on duty and punishing Plaintiff for his non-conformance. Defendants moved to dismiss the complaint on the grounds that the complaint failed to allege plausibly a constitutional violation, and invoking qualified immunity. The district court denied the motion on both grounds. Appellants filed this interlocutory appeal to challenge the court’s denial of qualified immunity. The First Circuit affirmed, holding that the district court did not err in rejecting Defendants’ qualified immunity defense.

Posted by Employment Law News [WK WorkDay]

Union may sue union director, other agents under LMRDA for breach of fiduciary duty

By Ronald Miller, J.D.

The Labor-Management Reporting and Disclosure Act (LMRDA) contains an implied cause of action for a union to bring a lawsuit for breach of the fiduciary duties by an officer or other agents of the union, ruled a divided D.C. Circuit. Consequently, the appeals court reversed a district court’s order dismissing the union’s claims under Section 501 and state law for lack of subject matter jurisdiction. Judge Tatel not only wrote the majority opinion, he also wrote a separate concurring opinion. Additionally, Judge Millett wrote a separate concurring opinion, while Judge Kavanaugh wrote a separate dissenting opinion (International Union, Security, Police and Fire Professionals of America v. Faye, July 15, 2016, Tatel, D.).

The union filed suit against the district director of a union office, alleging that while it employed him, he breached his fiduciary duties in a number of ways, including joining a rival union. The union also asserted claims under state law. According to the union, the employee attempted to establish a rival union and misused the union’s resources to achieve that goal. A district court concluded that the LMRDA provides a cause of action only to individual union members, not to the union itself, and that the LMRA provides no cause of action to a union seeking to sue a non-member employee. The district court further concluded that because neither federal statute provided the union with a cause of action, it lacked federal question jurisdiction over the case. Additionally, the district court ruled that it had “no basis to exercise supplemental jurisdiction over plaintiff’s state common law claims.”

On appeal, the union contended that the LMRDA gives it a cause of action and that the district court also had supplemental jurisdiction over its state law claims. This case presents the issue whether LMRDA Section 501 provides a union with a federal cause of action against its agent for breach of a fiduciary duty owed to the union.

Nature of inquiry.Before proceeding to the merits, the D.C. Circuit observed that, like the district court, earlier decisions tended to speak of the inquiry in jurisdictional terms.

However, in Arbaugh v. Y&H Corp., the Supreme Court made clear that the question whether the plaintiff has a cause of action is distinct from the question whether a district court has subject matter jurisdiction. Here, the union’s claim was at least “arguable,” regardless of whether it was “valid.” Thus, the court’s inquiry goes to the merits, not jurisdiction, which existed under the general federal question jurisdiction statute.

Implied cause of action.In determining whether an implied cause of action exists, “[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative.” Congress enacted the LMRDA in 1959 in response to various union corruption scandals. The statute gives union members an express federal cause of action against a union agent for breach of the fiduciary duties set forth in Section 501(a). Union members may bring such a suit “for the benefit of the [union],” provided that they first satisfy certain procedural requirements. However, central to this case nothing in the statute expressly gives the union itself such a cause of action.

In assessing whether a union has an implied cause of action under Section 501, the appeals court, citing Weaver v. United Mine Workers of America, observed that it was not writing on a clean slate. Weaver held that where union members have properly sued under Section 501, the union itself may take control of the suit and displace the union members. In this case, the district court distinguished Weaver on the ground that the opinion “did not address a union’s right to initiate suit on its own behalf.” Here, the appeals court noted that neither the district court, nor the defendant offered any persuasive justification for reading the statute to require that a union “be accorded [the] right” to take over a suit that “since its commencement has in reality been its own,” but not to allow the union to simply bring “its own” suit in the first instance.

Accordingly, the D.C. Circuit concluded that the reasoning necessary to the decision in Weavercompels the conclusion that a union may indeed bring a Section 501 suit in the first instance. Moreover, because the union’s Section 501 claim was properly before the district court, supplemental jurisdiction existed for the union’s state law claims.

Concurrence. Writing separately, Judge Tatel argued that even absent Weaver, he would conclude that Section 501 gives unions a cause of action. In his view, the statute’s text and structure revealed Congress’s intent both to create federal rights and to allow unions to vindicate those rights in federal court. Moreover, Tatel argued that the defendant’s reading of the statute becomes even less tenable when the court’s interpretation of Section 501 in Weaver is layered on top of it. The defendant’s position would suggest that the union has no ability to bring a federal suit in the first instance, but could displace its members and proceed to litigate the members’ suit against its agents in federal court.

In his own concurring opinion, Judge Millett agreed with the result in Weaver, and wrote separately to explain further his conviction that Weaver controls notwithstanding the arguments made in the dissenting opinion, and yet to acknowledge the force of the arguments against Weaver’s correctness, as well as to note the potential constitutional problems raised by the issue. Judge Millett observed that if the court were writing on a clean slate, the relevant indicia of statutory intent would weigh heavily against implying a right of action for unions to prosecute lawsuits under Section 501. However, he pointed out that unless the union can sue, the enforcement scheme that Congress devised could potentially run into some constitutional concerns.

Dissent. In a dissenting opinion, Judge Kavanaugh argued that a union did not possess a federal cause of action to sue their officers for breaches of fiduciary duties. According to the dissent, the decision in Weaver did not control the outcome of this case. The dissent pointed out that subsection (b) of Section 501, by its terms, does not give a union—as opposed to union members—a cause of action. Further, Judge Kavanaugh observed that that statutory silence had precipitated a circuit split, with the Seventh and Eleventh Circuits holding that a union has an implied cause of action, while the Ninth Circuit has held that unions do not have an implied cause of action under Section 501. Arguing that Section 501 did not create a cause of action for unions, the dissent urged that the judgment of the district court dismissing the union’s action should be affirmed.